Saturday, June 12, 2010

Who May Be Party List Rep?

The guiding philosophy behind the party-list system is clear enough.As the Supreme Court put it in 2001: “The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics.”

Philosophy, however, must be brought down to the level of practice.To do this, two important questions must be answered.First, what parties and organizations my participate in the party-list system?Second, who may become party-list representatives? The answer to the first question is clearer than the answer to the second.

The Constitutional Commission of 1986 itself did not have a clear answer to either question.It did say, however, through Section 5, Article VI that members of the House of Representatives may "be elected through a party-list system of registered national, regional, and sectoral parties or organizations."From this it can be deduced that political parties are not excluded from participation in the system.

But then the provision goes on to say that the seats for the “party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector."The phrases “as provided by law” and “as may be provided by law” have given to Congress the discretion to lay down some of the details for the system.

This the Congress did through R.A. 7941 which specified that the participating organizations must be such as “will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible."

On the basis of these provisions a divided Supreme Court made the ruling that the intent of the Constitutional Commission and of the implementing statute, R.A. 7941, was not to allow all associations to participate indiscriminately in the system but to limit participation to parties or organizations representing the "marginalized and underprivileged.” The Court said that even political parties must comply with this requirement.

We now have a whole slew of organizations claiming to be “marginalized and underprivileged.”They claim to possess the qualitative requirement of being “marginalized and underprivileged,” qualities which can be verified from the activities and goals of the organization.

But what of a nominee who seeks to represent the “marginalized or underprivileged sector.”What qualities must he or she possess? The same 2001 decision said that the law “mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will ‘enable’ the election to the House of Representatives of Filipino citizens, 1. who belong to marginalized and underrepresented sectors,organizations and parties; and 2. who lack well-defined constituencies; but3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”

R.A. 7941 itself says that a party-list representative must be “a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election.”In other words, the law, as interpreted by the Court, prescribes the ideological requirement of having a heart that belongs to a marginalized and underprivileged sector.

This requirement for the party-list nominee is the tricky part.It is easy enough to deduce from the constitutional provision that the organizations involved in the system must belong to the marginalized and underprivileged sector.Moreover, that the organizations possess this quality can be verified.But personal ideological quality, while not easily disproved, can easily be feigned.Besides, it is not all that clear from the law that a nominee himself or herself must also belong to the marginalized and underprivileged class.Indeed, it is quite possible for one belonging to the elite class of society to be a member of a marginalized organization because he or she has a heart that bleeds for the underprivileged.In fact, in the constitutional enumeration of the qualifications of members of the House, the only thing that differentiates party-list representatives from district representatives is that that they need not be residents in any particular district.Should this list of qualifications be read as exclusive or can Congress add an ideological qualification?

How the Comelec and the Electoral Tribunal will apply this requirement tohigh profile party-list nominees, such as Mikey Arroyo, remains to be seen.